New York Lawyer's Legal Updates

Proving Hardship For Immigration Waivers

A person applying for most Immigration waivers in the US, needs to prove an "extreme hardship" to a qualifying family member in order for the application to be granted. When it comes to Hardship waivers it can be frustrating to receive information as general as “proof of hardship”, especially when you receive a denial for a lack of proof thereafter.

As a general rule, proof of hardship can be summed up as evidence of inability to continue both without your partner in the United States, and impossibility of relocation to your partner’s (the non-citizen) home country.

There are many different hardships that can be accumulated through the loss of a partner or relocation to a new country. The strongest factors considered by USCIS when putting together your documents and brief in support of your waiver application are those that portray Financial Hardship and Medical Hardship. Other factors, such as the impact of separation, country conditions, political or religious difficulties that may arise from the relocation as well as the effect it may have on future planning’s such as children and the ability to raise them in the prospective country also matter. However, all presented reasons should be considered in the aggregate.

Proving Financial Hardship

There are many factors and everyone’s circumstances are different and this is why the explanation of "proof of hardship" is difficult to answer in general terms. The best way to describe this which fits just about everyone would be to say "Proof that if your spouse were separated from you, why you wouldn’t be able to provide for yourself and or your family." A few examples of a viable Financial Hardship would be:

1. Your Spouse takes care of the children during the day, housework, household finances, etc. Without your spouse to take care of the children you would need to pay for a babysitter or daycare, someone to clean the house if you have a hectic work schedule, on the extreme end hire a book keeper to do the household finances, order food from a home delivery service such as Peapod or Fresh Direct costing you more money because you will not have time to go to the store yourself between all the additional slack you will need to pick up without your spouse present.

*All of these additional expenses should be calculated and weighed against your current budget, some people who make a decent living still would go bankrupt trying to keep up with the additional expenses that would be necessary if they were to lose their spouse.

2. Your Spouse is the primary breadwinner in the family, without him/her there is no way you will be able to find a job to replace there income as well as pay for someone to help you do all the things you used to do.

3. Given the relocation to your spouse’s country you will not be able to find a job to support your family in the new country.

*For Example, countries such as Russia require a several years waiting period before you can gain work authorization based on marriage to a Russian citizen, they offer very little government assistance if any to citizens let alone non-citizens making it fair to say that relocation would almost be suicidal if your spouse is unable to find work to support the family.

Proving Medical Hardship – Medical Hardship can be broken up into physical and psychological types. While the hardship on your psyche can be excruciating it is my experience that this unfortunately is only a supplemental (though still important) to the physical hardship in a medical sense. A physical hardship are easier to prove then financial hardship. If you have a disease that inhibits your ability to perform in any way that your spouse assists you in you probably qualify for a Medical Hardship. Examples of physical medical hardships can be:

1. If you have diabetes and are on a strict diet, your spouse cooks for you and makes sure that you are doing everything that needs to be done to stay healthy. The best example would be if you have had diabetes for many years and have shown improvement since your current spouse started caring for you. If you were to be separated, you would regress most likely in this case without even taking into consideration the ramifications of separation anxiety and depression. Take into consideration the quality of medical care in non-citizen’s spouse’s country...

2. Your US Citizen child has a Severe Asthma and needs to be supervised at all times by someone knowledgeable of the condition with the ability to act accordingly should the need arise. Coupled with the factor of the US Citizen Spouse working full time to keep the finances in order and not being able to supervise the child and work to put food on the table it can make for a stronger financial hardship as well seeing as a professional babysitter or daycare for children with medical conditions would be more expensive than one that does not meet this extra criteria.

3. Yet another example of hardship would be when a qualifying relative has to assist on a regular basis some family members or the non-citizen provides this assistance
...

These are just general examples. Each situation is unique and each case is unique. Often, people cannot fully evaluate themselves how drastically their lives would change if that application is not granted, or they cannot express it on paper. Sometimes, people think that their hardships are obvious and there is no need in detail documentation… It is recommended that in each case of a waiver, a person at least consults with an attorney. Some denials cannot be appealed at all, and all appeals take a very long time. That is why, the best decision would be to prepare a qualify application that has a chance to be granted from the first submission.

30 July 2015

A Brooklyn Lawyer Serving New York Community

New York Russian speaking lawyer Alena Shautsova is located in Brooklyn and serves New York City, Manhattan, Queens, the Bronx and surrounding communities.